Roberts Is No Warren

In light of the Obamacare ruling today from the Supreme Court, in his post below Mr. Richert not only compares Chief Justice Roberts to Chief Justice Warren but compares Warren favorably to Roberts! I have no doubt Warren would have joined in Justice Ginsburg's concurring/dissenting opinion and held that Obamacare passes Constitutional muster under any of the theories argued to support it. Roberts opinion, on the other hand, is very narrow (as is the joint dissenting opinion of Kennedy, Scalia, Thomas and Alito). Depending on how you read Justice Thomas' separate dissent, there are eight or nine justices who agree that universal health coverage is achievable by the federal government -- the only question is by what means. And so the decision turned narrowly on whether the "penalty" for not buying health insurance (i.e., the "individual mandate") is actually a "tax", which all (or almost all) of the justices agree at least in theory would be an acceptable means by which to achieve universal heath coverage.

Although I disagree with Robert's opinion on its legal merits, I believe he saw the writing on the wall that some form of universal health care is inevitable and to have overturned Obamacare in a 5-4 decision on very narrow grounds would have damaged the legitimacy of the Supreme Court, his Supreme Court in particular, one that is likely to be favorable to conservatives for at least the next several years and possibly decades if Romney is elected.

For what really upsets conservatives when they speak derisively about the Supreme Court? Is it the expansion of the federal government under the Commerce Clause? That battle was fought and lost in the '30s when FDR threatened to pack the court with nominees friendly to the New Deal. No, what really rankles conservatives, is the radical social agenda that liberals often rely on the Court to impose on the country when the ignorant rubes and country bumpkins in flyover country aren't coming along fast enough. That is precisely what the Warren Court is most known (and reviled) for and what subsequent Courts continued to do with stunning consistency until at least the '90s.

When the Supreme Court is ultimately asked to rule on whether gay marr--excuse me, marriage equality--is required by the Equal Protection Clause, everything we know about Roberts to date suggests that he will be voting with Alito, Scalia and Thomas to uphold laws to the contrary. Were Earl Warren still chief justice with a majority consisting of men like William Brennan, William O. Douglas and Thurgood Marshall, you can be assured that gay marriage would be a reality in all 50 states today and probably a decade ago. Roberts is no Warren.